' MUHAMMAD ZAHOORUL HAQ, J.-This is an appeal against the judgment of the Sessions Judge, Sanghar dated 18-4-1978 whereby the appellant was convicted under section 302, P. P. C. And sentenced to undergo imprisonment for life on the ground that it was not a case of premeditation and the appellant had struck only one fatal blow.
' The facts of the case are narrated in F. I. R. Exh. 30 which was filed by complainant Shah Mir P. W. 9, same reads as under :- "That Hangal alias All Nawaz had got his own sheep and got cattle. My. Cousin Khairuddin is residing with-Hangal alias Ali Nawaz for tne.,,.Last about three months and is grazing his sheep.
Hangal alias Ali Nawaz is himself grazing his goats. Today in the morning, I and my brother Muhammad took our sheep and goats and left for grazing the same and left the cattle for grazing near the land of Ahmed Khan Laghari. Hangal alias Ali Nawaz and Khairuddin left sheep and goats in the wheat remnants of Ahmed Khan Leghari for grazing. At about noon time i,e, 2-00 p.m., there were cries of my cousin Khairuddin. Whereupon I and my brother Muhammad went running there and saw that Hangal alias Ali Nawaz gave sharp-sided hatchet blow on the head of Khairuddin and thereafter he gave him other blunt-sided hatchet blow. Upon this we gave him "Hakkal", and asked him not to go. On our 'Hakkai' Hangal alias Ali Nawaz ran away towards his village alongwith hatchet. Thereafter we saw that Khairuddin had received hatchet blow on his head and was bleeding. Khairuddin said, 'Hangal alias Ali Nawaz told me to light the pippe and give him the same.
Upon this I filled the pipe with Tobacco and started lightening same, but due to blowing of wind, the pipe did not lit upon this Hangal alias All Nawaz abused me and said as to why you are not lightening the pipe. Upon this I told him to be gentle and not to abuse and that I was lightening the pipe. Upon this Hangal alias Ali Nawaz gave me sharp sided hatchet-blow, which hit me on my head and it started bleeding. He gave me other blunt-sided hatchet blow, which hit me on my right shoulder. I raised cries, whereupon he on seeing you coming has run away alongwith the hatchet.
' On having such information from my cousin Khairuddin, we got him carried and brought him to our village. After leaving Khairuddin at the village, I have come here to lodge report. I lodge report.
Justice be done."
' The F. I. R. Was recorded by P. W. 11 Muhammad Yousuf, A. S. I. On 24-5-1974 at 5 p.m. Who was the incharge Mala Dasi Police Post. He proceeded with the complainant to his house and there recorded the statement of the injured Khairuddin who later on died. The same is Exh. 40 and has been produced by A. S. I. Muhammad Yousuf P. W.
11. The A. S. I. Muhammad Yousuf also prepared mashirnama of the injuries of Khairuddin in presence of mashirs Sawan and Maddad Ali which is Exh.
13. He then referred the injured to Medical Officer Shandadpur for examination, treatment and certificate. He also examined P. W. Muhammad. He then came to the scene of offence which was shown to him by complainant Shah Mir in presence of mashirs Sawan and Maddad Ali and he prepared the memo. Of vardat Exh.
14. Vardat has occured in the land of Dhani Bux. Drops of blood were found there. A small bag containing Tobacco and kerchief was also found there.
' The accused was arrested on 25-5-1974 by the Investigating Officer under mashirnama Exh. 15 in the presence of the same mashirs. The accused voluntered to produce the hatchet and he led the party to his house and produced the hatchet but the same was not blood-stained. It was recovered under mashirnama Exh.
16. The accused was released on bail, but when the injury upon Khairuddin was declared grievous he was rearrested on 28-5-1974 under mashirnama Exh.
41. On 29-4-1974 the accused voluntered to make a confession and he was, therefore, sent to Mukhtiarkar Shandadpur where he made., the confession Exh. 46 but the same was retracted at the time of Vial: The confession had been recorded. By P. W. 12 Mr. Jalaluddin, Mukhtiarkar and F. C. M.
Shandadpur on 25 May, 1974, at 1-30 p.m. Another dying declaration of the deceased Khairuddin was recorded by IIIrd Class Magistrate Mr. Mir Muhammad. The same was recorded in the hospital.
Before proceeding further it would be useful to reproduce the two dying declarations Exh. 40 and Exh. 22 as well as the retracted judicial confession Exh.
46. The first dying declaration recorded by A. S. I. Muhammad Yousuf on 24-5-1974 being Exh. 40 reads as follows :- "I Khairuddin son of Sher Muhammad caste Maree Baluch and resident of Riasat Ali Shah near Golo Pir Cori, Taluka Shandadpur, do hereby state as under :- ' I am residing with All Nawaz alias Hangal for the last about three months who has got his sheep and 'goats. He himself is grazing his goats and I am grazing his sheep on salary basis. Today in the morning, I and Hangal alias Al Nawaz took out goats and sheep and went for grazing the same. We took the cattle and left it in the wheat remnants of Dhani Bux Leghari. My cousin Shahmir and Muhammad left their goats and sheep in the wheat remnants near us, at about 2-00 p.m. Ali Nawaz alias Hangle told me to put the Tobacco in the 913hungrit (Pipe) and lighten the same, whereupon, I did so, but due to hind wind blowing, the pipe could not be lighted. Dpon this All Nawaz abused me and told me as to why I am not lightening the `Bhungre (pipe). Upon this All Nawaz alias Hangle gave me a sharp sided hatchet blow, which hit me on my head. He gave me another blunt sided hatchet blow, which hit me- on my right shoulder. As a result of which I raised cries. On my cries, my cousin Muhammad and Shahmir arrived there. They also saw the accused giving blows. They gave `Hakkai' upon this accused Ali Nawat alias Hangle ran-away to his house along-with hatchet. I narrated the above facts too Shamir and Muhammad, they got me carried to our village, from where, Shahmir went to lodge report."
The second dying declaration recorded by 3rd Class Magistrate Mr. Mir Muhammad P. W.-3 on 25- 5-1774 at 10-30 p.m. Being Exh. 22 reads as under :- "I do hereby state on solemn affirmation that my name is : Khairuddin Father's name: Sher Muhammad. Caste : Sherani Maree Baloch, aged about 22 years, Occupation : Cultivation.
1 am 'Harr of Retd. Mukhtiarkar Riasat All Shah in Deh Maldasi, Ali Nawaz has given me. Three hatchet blows. One hatchet blow has been inflicted with its sharp side, and two blows with its blunt side. All Nawaz is by caste Masse. He has given me blows while F'was grazing cattle in the jungle.
'He has given me blows day before yesterday at noon time. At that time, we two persons namely I and Ali Nawaz were in the jungle. No one was present there. I and All Nawaz both are habitual smokers of'Sulfi' (Tobacco-pipe). He asked me to serve him with `Sulfa' immediately, I told him that there was too much wind and `Sulfi' could not be lighted. On my saying so he had gave me hatchet blows and ran away. I raised cries, thereafter, my cousin Shahmir, who was grazing cattle nearby arrived there. I narrated him above facts. Thereafter Shahmir sot me carried: to the Hospital. I am giving this statement with my sound mind and full senses."
' The relevant portion of the retracted extra-judicial confession made on V-5-1974 by accused to P.
W. 12 Mr. Jalaluddin being Exh. 46 reads as under "I am making true confession which is correct. The facts are that injured Khairuddin was grazing my sheep on salary. One day prior to the day of incident, Khairuddin had left my sheep in the "Moong" cultivation of a refuse. The sheep trampled the cultivation of the refugee and I paid compensation to the refugee for the loss caused to his cultivation. On the day of the incident, Khairuddin was with sheep. I told him not to allow the sheep in the cultivation of others. As I am suffering loss. Upon this, Khairuddin became displeased and abused me. Upon this I became annoyed and gave a sharp- sided hatchet blow on his head. Upon this Khairuddin sat on the ground and started bleeding from the head. Thereafter, I after leaving injured at the place of occurrence went to the Village.
Thereafter police arrested me."
The injured was examined by Dr. Keshawalal P. W. 5 on 24-5-1974 at 7-30 p.m. And the certificate of injuries has been produced as Exh. 19 but the same is dated 25-5-1974. The same shows only one injury by sharp side of hatchet on the head of the deceased who had died on 2-6-1974, Whereas in the mashirnama of the injuries prepared by Investigating Officer on 24-5-1974 and produced as Exh. 13, there are two injuries shown upon deceased. One injury is on head by a sharp weapon and the other is swelling on right shoulder. The post mortem report is Exh. 20 and the same also shows only one injury at the head which was certified as sufficient in ordinary course of nature to cause death. It was incised wound 6" x x cutting the bone on the left parietal occipital region of head.
' The prosecution case was proved by two eye-witnesses P. W. 9 Shahmir the complainant who was cousin of the deceased and P. W. 10 Muhammad who was the brother of the complainant as well as the cousin of the deceased. Both these eye-witnesses had claimed that they were grazing their cattle and their cousin Khairuddin, deceased, used to graze the sheep of Hangle alias Ali Nawaz while All Nawaz himself used to graze his goat and the cattle were left for grazing near the land of Ahmed Khan Leghari and at about 2 p.m., they heard cries of their cousin Khairuddin whereupon they both went running there and saw Hangle gave sharp-sided hatchet blow on the head of Khairuddin and thereafter he gave blunt-sided hatchet blow. These two witnesses warned the accused who ran away towards his village. These witnesses saw the injuries of Khairuddin and Khairuddin told them the story that All Nawaz had asked him to kindle Sulfi but he was not able to kindle the same due to the pressure of the air and on that Hangle abused him and thereupon Khairuddin told Hangle not to abuse and that he Was trying to kindle and then accused Hangle gave him one blow with sharp side and another blow with back side of the hatchet. These two P.
Ws. Then brought injured Khairuddin to their house and made him sip syurp and then Shahmir went to Mala Dasi Police Post to lodge the report. In the cross-examination Shahmir denied that he had mentioned before the Lower Court That Khairuddin was grazing same in the F. I, R. Which had been recorded earlier. Shahmir had also stated that A. S.
1. Muhammad Yousuf had accompanied to him to his house and seen the injured there. He stated that the injured, was not unconscious when he was carried, but in his lower Court statement Exh. 33 he had stated so. He denied that father of accused and brother of deceased used to visit the deceased in the hospital. He stated that the accused used to reside at a distance of one mile from his house. He denied the suggestion that he and Muhammad had not witnessed the incident and they have falsely implicated accused due to enmity.
' P. W. Muhammad in his examination-in-chief had stated that he and Shah Mir had brought Khairuddin injured to their house but in cross-examination he was confronted with his Lower Court statement where he stated that the injured was taken from the vardat to his house by him, Guloo Shahmir and Mir Muhammad. But he explained in the cross-examination that the house of the deceased was adjoining to their house and when police came injured Khairuddin was lying in his own house. He also denied the suggestion that father of the accused did not come to see the deceased in the hospital. But he had said so in his Lower Court's statement Exh.
37. He stated that police had recorded statement at Police Station after 1 or 2 days. He denied the suggestion that he did not see the incident or that they had falsely implicated the accused due to enmity. There is no cross-examination directed against both these witnesses in respect of the actual incident deposed to by them in respect of the giving of the injures by the accused to the deceased.
' Mr. Muhammad Hayat Junejo, learned counsel for the appellant has argued that the eye- witnesses were away from the scene of offence and they had been attracted only on hearing cries which must have been raised by the deceased after he received the blow on his head and, therefore, they were not the eye-witnesses of the actual inflicting of blows by the accused and since they wanted to pose as eye-witnesses, therefore, they were speaking falsehood and, therefore they should not be believed even in respect of the statement made to them by deceased Khairuddin. We do not find any justification in this criticism as the statements of these witnesses that they were grazing cattle near about has not been seriously challenged by the defence and the only question put to them is in respect of the distance being greater or less from the scene of offence. We find that the occurrence is during the mid-day and, therefore, these persons could have seen the incident from a distance and it, was, therefore, not improbable that they could see the incident. There had been some argument between the deceased and the accused before the actual blow on the head was struck and when the accused abused the deceased or when the deceased remonstrated with the accused not to abuse him the same could not have been whispered and must have been in loud noise and therefore, the attention of the P. 1Vs. Could have been attracted towards the deceased. In any case, the occasion of the cries raised by the deceased and the diversion of attention of the P. Ws. Towards the cries must have been simultaneous and the P. Ws. Could have, therefore, seen the incident. The defence has not suggested that there were obstructions of trees and bushes or raised ground between the place of incident and the place of incident and the place where these P. Ws. Were standing and, therefore, it was quite natural for these P. Ws. To have seen the incident. These witnesses" had seen the deceased and the accused before the incident and they have also seen the accused running away from the scene after he was challenged by these P. Ws. Have not stated that they had heard the talk between the deceased and the accused and they have merely stated that they saw the incident from a distance and then they were related the whole incident by the deceased Khairuddin when they went near him. Their version is also corroborated by F. I. R. Exh. 13 which had been lodged by P. W. Shahmir at 5 p.m. On that very day after these P. Ws. Had removed injured to their house and thereafter Shahmir had proceeded to the police station. The F. I. R. Was, therefore, lodged without unreasonable delay and it provides reasonable corroboration to the testimony of P.
W. Shahmir and the testimony of P. W. Muhammad is also to the same effect. There is no enmity between these 2 P. Ws. And the appellant Hangle and they belong to the same caste of Marree. It is, therefore, not possible to discard the statement of these witnesses more particularly so when they have involved only one person as the assailant of their cousin.
' The version of these P. Ws. Is reasonably corroborated by the first dying declaration Exh. 40 recorded by A. S. I. Muhammad Yousuf on 25-4-1974. No cross-examination has been directed against A. S. I. Muhammad Yousuf that he had not recorded the dying declaration of the deceased on that day. This dying declaration has been reproduced earlier and we have no hesitation in believing that the statement had been recorded by the Investigating Officer. Mr. Hayat wants us to discard these dying declarations as according to him the Investigating Officer could not have the time to record the statement and he must have sent the deceased Khairuddin to the Hospital for treatment. He has argued that it must have taken A. S. I. Yousuf some time to record the F. I. R. At 5 p.m. And then proceed to the house of the complainant and that he should have recorded a memo. Of vardat before doing anything else and since the injured Khairuddin has been received at Shandadpur Hospital at 7-30 p.m. Therefore, there could be no time for the Investigating Officer to record the statement of the injured as deposed to by him and, therefore this statement could not have been recorded on 25-4-1974. We are not impressed by the argument of the learned counsel.
There is no cross-examination directed against the Investigating Officer Muhammad Yousuf in this regard and his positive statement could not be thrown out on the basis of mere suggestions made at the time of argument that the time at the disposal of the Investigating Officer was not sufficient to do what he has done. No enmity of any sort has been suggested between the accused and the Investigating Officer and the complainant party and the accused are both not evidently of such stature that they could influence the said Police Officials and there is no suggestion of any bungling or corroboration against the A. S. I. Muhammad Yousuf and, therefore when he states that he took the statement of the injured, it can be accepted as correct. It was not unreasonable on the part of the Investigating Officer to first see the condition of the injured before he went to the scene of offence and since the complainant party had itself taken the injured first to their own house without taking him to the hospital or the Police Station, therefore, the Investigating Officer also must have considered that no great damage will be done, to the injured if his statement was recorded by him before sending him to the hospital. We have, therefore, , no hesitation in concluding that Investigating Officer Muhammad Yousuf had recorded the statement of the injured on 24-5-1974.
Mr. Hayat had attacked these dying declarations also from the point that it was not clear as to where the statement was recorded whether in the house of the complainant or in the house of the deceased himself. There does not seem to be much substance in this criticism, as the house of the deceased and the house of the comp7,inant are adjacent to each other and they are closely related to each other and, therefore the difference of the house could not materially detract from the value of this dying declaration. The last attack of Mr. Hayat on this dying declaration was that the same is inconsistent with the deposition of the Medical Officer and the medical certificate granted by him in respect of the injury upon deceased. Mr. Hayat has argued that the doctor had found only one injury on the head by sharp side of hatchet while the dying declaration talks of two injuries and, therefore the deposition and the certificate of an expert should be preferred where there is inconsistency between an oral statement and a medical expert. This inconsistency is certainly there and there may be any reason for this omission in finding the second injury upon the deceased by the doctor' but we have held that the F. I. R. Had been lodged without any particular loss of time and we are also of the view that the statement of the injured has been recorded on the same day and the statement of the Injured recorded by Police and the F.
1. R. Lodged by Shabmir and the deposition of the two witnesses namely Bhahmir and Muhammad speak of two injuries upon the deceased one on the head by sharp weapon and one on the shoulder by blunt weapon and, therefore, all this authentic evidence cannot be discarded because there is an omission by the Doctor in noting one injury on the shoulder, ' Mr. Shukat Zubaidi counsel for the State has offered an explanation that the right upper and lower limb of the injured had been paralaysed as shown in the medical certificate Exh. 19 and, therefore the swelling injury on the right shoulder might have been missed. This could possibly be a reasonable explanation of the failure to note the injury on the shoulder. But even without this explanation we are reluctant to discard the evidence of the P. Ws. As corroborated by a promptly recorded F. I. R. And further corroborated by a statement of the deceased made to police officer on the same day merely because the same did not tally completely in respect of injuries of deceased with the medical certificate. Even the medical report and the statement of the Doctor do support the rest of the evidence in respect of the fatal injury caused on the head of the deceased and, therefore, the non-mention of mere swelling on the shoulder in his deposition and the medical certificate is not considered to be so significant and material that it can demolish the whole prosecution case.
' Mr. Hayat has also submitted that the confession made by the accused Exh. 46 recorded on 29-5- 1974 by the Mukhtiarkar Shandadpur was in conflict with the dying declaration and, therefore, both judicial confession as well as dying declaration should be discarded. The reason given by the appellant for killing Khairuddin in his confession was that Kbairuddin had allowed the sheep of the accused to tremple the Moong cultivation of a refugee and since on an earlier occasion the appellant had to pay compensation to the refugee for the loss caused to his cultivation, therefore, on the day of incident appellant told him not to allow the sheep to go in to the cultivations of others and upon that deceased Kbairuddin had become displeased and abused him and thereupon the appellant become annoyed and gave a sharp sided hatchet blow on his head. This confession of the appellant was made on 29-5.1974 whereas the incident was on 24-5-1974 and between this time the appellant had been arrested once by the Police and he had led the police to his house wherefrom he had produced a hatchet but the same was not blood-stained. If the appellant had made this confession at that time viz. On 25-5-1974 when he produced the hatchet vide a memo.
Exh. 16 then one could have attached more value to the confession but it is a fact that after 'his arrest on 25-5-1974 the appellant did not maka a confession and be was released on bad.
' He was thereafter arrested again on 28-5-1974 and made this confession on 29-5-1974. The appellant had therefore more than ample opportunity of considering the situation and he also had the test of first arrest by the Police, thereafter he had the further. Opportunity after his release on.
Bail to have consultation with his relatives and, therefore, the confession made by him on 29-5- 1974 cannot be regarded as a spontaneous admission of his guilt and we find that it is not worth being believed and, therefore, the same cannot be used for the purpose of contradicting the contents of the dying declaration made by the deceased. Moreover, in this confessionn, the appellant has made exculpatory statement that he was abused by the deceased and further that the deceased had neglected in performing his 4_uty by allowing the cattle to deviate into the cultivation of others. This confession, therefore, does not appear to be true and also does not appear to be worth being believed, more so as it has been retracted at the trial. However, this part of the confession that the deceased was grazing sheep of the appellant is in conformity with the other prosecution evidence and the same being an admission of fact about an incidental matter can be believed as this part of the confession is amply corroborated by other evidence and the confession has been proved by Magistrate who recorded, the same.
' The accused in his statement under section 342, C. P. C. Had denied that he was produced before the Magistrate or that his confession was read-over to him. He had further stated that deceased was given blows by P. W. Muhammad who had seen the deceased in compromising position with the wife of P. W. Muhammad. He further stated that deceased Khairuddin was nephew of both complainant and P. W. Muhammad and he used to reside with them and further stated that the S. H.
0. Had been bribed. No question had been out by the accused either to the complainant or P. W.
Muhammad in their cross-examination in respect of the suggestion of the deceased having been found in compromising position with the wife of Muhammad. And therefore the same is mere scandalizing suggestion and does not deserve any consideration. The relevant questions put to this eye-withess were that they had involved the accused due to enmity over land these questions cannot be regarded as questions in respect of the deceased having been found in compromising position with wife of Muhammad. These two eye-witnesses are both Marrees by caste and the appellant is also Marree by caste. They have neither any proved enmity over land nor on matrimonial affairs, therefore their testimony is entitled to a great deal of weight as they have apparently no motive to falsely involve the appellant. We are, therefore, of the view that the appellant had killed the deceased with hatchet.
' The next question is as to what offence had been committed by the appellant. Admittedly there is no enmity between the appellant and the deceased and according to the evidence of prosecution itself the deceased was working as grazier for the appellant for the last three months or so.. The deceased was a young man and it could be possible that he might have strongly remonstrated with the appellant when the Sulfi could not be kindled by him and he was abused by the appellant.
In any case, the affair was a sudden one and only one sharp-sided hatchet blow had been delivered by the appellant 'upon the deceased, and in these circumstances, it would be difficult to infer that the appellant had intended to cause death of the deceased. The second injury upon the deceased being from the blunt side of the weapon indicates that the appellant who had given first blow. -on the head by the sharp-side of the weapon in a - rage had probably repeated and thereafter used the blunt side of the hatchet on the shoulder of the deceased. It has been held in 1975 P Cr. L J 1121 by a Division Bench of this Court that where the accused on sudden altercation over return of money feeling insulted on account of deceased's behavior had given single hatchet blow on his head without malice, and medical opinion was not certain if injury was sufficient in ordinary nature to cause death, it was held in these circumstances that the appellant had no intention to cause death and conviction was altered from section 302, P. P. C. To section 304 (2), P.
P. C. And sentence was reduced to 7 years R. I. In another case in 1975 P Cr. L J 1124, a Single Judge of the Lahore High Court altered the conviction from 302, P. P. C. To 304, P. P. C. Where the accused had lost temper at deceased's refusal to let him have water first and inflicted a single blow with Kassi lying nearby without determination of causing death and had thereafter started running, With respect agreeing with the views expressed in the two decisions cited above, we-are of the view that in this case the appellant could not be burdene with the intention of causing death as it was a case of sudden incident an only one serious blow had been caused by the appellant and th Circumstances indicate that there might have been a serious remonstrant from the deceased on the abuse uttered by the appellant and the appellan might have felt enraged and insulted and there being no previous enmity, it was not a case of intentional causing of death but certainly the appellant could be burdened with the knowledge that the weapon he was using a the place which he was selecting for the injury was such that dea would be the result of his action. The appellant is therefore, guilty o the offence under section 304, P. P. C. And his conviction under section 302, P. P. C.
Is therefore, converted into a conviction under section 304, P. P. C. And is sentenced to suffer R. I. For 7 years and to pay a fine of Rs, 1,000 0 in default of payment of fine to suffer further R. I. For 6 months. The appellant is further directed to pay a compensation of Rs, 5,000 to the heirs of the deceased Khairuddin under section 544-A, of Cr. P. C. Or in default thereof to suffer R. I. For 2 years.
With these alterations in conviction an modification of sentence, the appeal is dismissed. But, the appellant will be allowed a rebate of 2 years in the imprisonment awarded to him above o account of his long confinement in jail before conviction under section 382-B, of Cr. P. C.